I have a pet. Being cruel to animals is wrong. But why put more people in jail for it?

A quick, and I trust unnecessary, upfront disclaimer. I think torturing kittens and deliberately starving puppies to death is wrong and worthy of criminal punishment.

That said, I don't support Simon Bridges' efforts - which National's caucus has just chosen to adopt as government policy - to increase the maximum penalty for such actions from 3 to 5 years imprisonment. It seems to me to be yet another example of treating our prisons as the answer to a complex social problem, based on some fairly dodgy moral reasoning and suspect causative assumptions, all for the sake of scratching a populist itch. Kind of like the three-strikes sentencing policy, now that I think about it.

First off, if we're serious about this topic, we need to confront a hard-to-reconcile dichotomy in New Zealand's views on how animals ought to be treated. (Any ethical vegetarians reading this can flick their smug-switch on about now.) We get pretty het up about people who do things like this, or this, to family pets. We even seek to re-educate (or even punish) those who choose to kill and eat the "wrong" sort of animals in our country, even when they do so quickly, cleanly and with a minimum of suffering. But at the same time, our national economy continues to rely primarily upon the systematic ill-treatment of animals for profit.

Yes, yes, I know we have legally enforceable animal welfare codes to cover the farming industry. And I'm sure most cockies will proclaim their deep commitment to caring for their livestock and ensuring its wellbeing (up until the point of slaughter, and within the iron bounds of economic necessity, of course). But there still is no getting away from the fact that literally millions of animals annually die in conditions of extreme terror in our freezing works, or live on dairy farms in a state of constant pregnancy and lactation, or are stuffed into battery cages or sow crates for their short and miserable lives.

Of course, you can argue that these practices are not "deliberately cruel", as they aren't intended to inflict pain for its own sake but rather are the unfortunate by-product of mass producing protein for our consumption. But that's the dodgy moral reasoning I referred to earlier in my post. It requires you to believe it's OK for an animal to experience pain and terror if you are going to enjoy eating it afterwards, but not OK to enjoy causing that pain in and of itself. I can have some respect for that argument coming from a hunter who tracks and kills (usually) his prey with his own skills. But there's something deeply suspect about the average supermarket consumer who won't even spend the extra money needed to buy free range over battery cage eggs then expressing their deep disgust for those who are responsible for hurting innocent creatures like cats.

Perhaps it's the need to find a justification for why deliberately hurting animals for pleasure is bad and deserving of lengthy prison terms, while deliberately hurting them for profit and consumption is good and deserving of knighthoods, that leads to suspect causative assumptions being drawn. In explaining why longer sentences are justified for extreme cases of mistreatment, Simon Bridges explained that: "The research makes it very clear that this type of offending is a strong indicator of family and other violence and also a strong indicator of the worst type of psychopathic offending."

He's right about this factual claim, as this article and this book explain. But just why does the correlation between intentional cruelty to animals and offending against humans now justify longer prison sentences for cruelty to animals? If an offender against animals also is harming humans (in the family or otherwise), then why not sentence her or him for that crime? And if an offender against animals isn't also harming humans, then why should she or he go to jail for longer just because some other such offenders do so? In other words, doesn't the intention appear to be to punish every offender against animals for what only some offenders also do to humans?

No, the answer will come. The idea is to deter all people from acting in seriously cruel ways towards animals, thus stopping them from also hurting humans. But even if we accept that stopping one form of cruelty can halt the other (and if so, why not help animals by trying harder to stop people hurting people?), will an increase in prison sentances really have such a deterrent effect? For instance, the link between animal cruelty and psychopathic offending appears to relate to that offender's actions as a child and young adult, when the cognitive reasoning process is only developing. And how exactly will putting a nascent psychopath in prison for torturing a cat or bird help to stop the progression of his or her psychopathic tendencies?

Equally, the links between familial violence and cruelty towards animals seem to be complex and interweaving. From my brief perusal of the literature (and please - anyone more expert in this field jump on the comments section below), it appears that those who experience violent and abusive family settings are much more likely to engage in cruelty towards animals. Hence, a goodly number of those subject to the proposed longer prison sentences will be those who already in their lives have been mistreated in fairly horrible ways.

Now, I know the argument; being a victim of violence does not justify meting out violence to others. I fully accept that. I also accept that the criminal law has a role as a marker of societal disapproval, to demonstrate that certain actions are just not OK in any situation. As I said in my opening paragraph, wanton cruelty to animals deserves criminal punishment.

However, if society's disapproval simply is marked by locking a few people up for longer, it won't work. The campaign against domestic violence in New Zealand shows that you need a broad strategy that combines rigorous prosecution of offenders with general consciousness raising measures that violence against others is never acceptable. And given that John Key himself claims that only 1% of serious cases of cruelty against animals currently are prosecuted, there is a lot to do even within the current law before it is perceived as a real sanction. It is detection and prosecution that matters for deterrence, not the term of imprisonment.

And here's another problem with raising the sentencing tarrif for extreme cruelty to animals to 5 years imprisonment, one recognised when Justice Minister Simon Power talks about the need to "retain proportionality" in sentences. 5 years in jail is the same potential punishment as is faced by a parent who wilfully neglects or ill-treats her or his child, or a person who assaults another with a weapon. There's no way that a government politically can allow such offences to continue to carry the same potential jail time as harming a mere animal - so it will have to raise the sentences for these sorts of offences as well. Which is going to mean more people spending more time in prisons that already are getting over-crowded, at a cost of over $100,000 a year, for little appreciable social gain. (Interested readers may wish to read (or re-read) this about now.)

So if an increase in prison sentences for animal cruelty isn't the right thing to do, does that mean we should just stick to the status quo of allowing animals to be treated as machines for our amusement? Not necessarily. For one thing, the SPCA presently has sole responsibility for investigating and prosecuting cases of animal cruelty, all of which is funded by private donations (you can give here, by the way). If the government is serious about wanting to stomp out such cases, perhaps it could help meet those costs? For another, I think that children or youth who exhibit a severe lack of empathy for other living beings by engaging in extreme cruelty towards animals require quite intensive forms of intervention and counselling. However, the fate of the Te Hurihanga pilot programme for young offenders, widely praised by those involved in the justice system for actually helping break the cycle of offending, seems to indicate that such programmes are too rich for the present government's taste.

Apparently it's much easier, and more headline friendly, to just change a law.

Comments (15)

A lot of objectors to law change seem to follow the same logic, that if the change will not completely fix the problem why bother doing it, lets just sit back and talk about the problem for a few more years.

Firstly let me jump to the governments defence. Yes, it is easier for them to just change the law. This is what governments do well and can do quickly (but not always do well). What is very hard to do is put in place actual society based policies that change behaviour patterns. To change a law takes 61 MPs to vote and probably about three times as many support staff to actually do the work. To put in place societal policy takes legions of public servants years of preparation, only to have a new government want to tweak the policy and therefore set back implementation by years.

So it is easier for them to just change the law. But a “simple” law change can serve multiple purposes.

Firstly it helps raises awareness of the issue and often sparks people into action.

Secondly if it is popular it grabs votes, which can mean they stay in power longer which allows them to put proper solutions into place.

Finally, as you point out, one of the roles of the law (criminal or civil) is to reflect how strongly society feels about a particular issue. I am not sure people really feel 3 years in prison is too short for extreme cruelty to animals, but popular comment over the next few weeks will help decide that I suppose.

Oh yes, with respect to your comments about cruelty to animals and children now effectively carrying the same sentence, I disagree that this needs to change. I think this reflects a large part of our modern society’s attitude towards their pets, many people (mistakenly in my view) see them the same as they would their children. Also the law is full of inequalities in sentencing, where most people would agree some sentences are simply out of whack with others. So I am not sure that if this bill becomes law there would need to be a change to others.

So ends my quick and dirty defence of the government...Now having waffled my way through that poor defence let me tell you I think the change to 5 years is a waste of time, if you wanted to make a real point make it 7 years (which I think would be excessive and probably result in me needing to spend time inside because I force my dog to sleep outside in the summer and force it to eat dog food and drink tap water from a bowl).

The real danger in this law is people will sit back and say “the problems been fixed now” and no further action will happen. Unfortunately, despite best intentions, this is too often the case with law changes.

It is a knee jerk reaction to a popular headline and in my opinion an example of how the media can unfairly influence policy. It is most likely that several ministers pre-teen children chewed their parent’s ears off in disgust at someone shooting a dog, and then forced them to promise to do something about it or they would sulk for the rest of their lives.

If the government and heaven forbid the media, were serious about all this they would couple the law change with the points you make in your last paragraph. Give the SPCA a wider mandate, allow them to spend more money on education and well as investigation. Get serious with early offenders, [insert other common sense ideas that will actually work but will probably be ignored as they are “too hard”].

Out of interest I wonder how many times prison sentences are actually handed down for animal cruelty?

5 years in jail is the same potential punishment as is faced by a parent who wilfully neglects or ill-treats her or his child ... There's no way that a government politically can allow such offences to continue to carry the same potential jail time as harming a mere animal - so it will have to raise the sentences for these sorts of offences as well.

The government has already announced its decision to do this - which preceded its decision to adopt Simon Bridges' Bill. One aspect of the package of reforms released by the Law Commission before Christmas, that will be implemented by the government, is a proposal to increase the section 195 penalty (which is the child neglect or ill treatment provision) from 5 to 10 years.

However, they have overlooked another relativity issue: the large discrepancy between the penalties for "ordinary" ill treatment (6 months) and "wilful" ill treatment (currently 3 years, to be increased to 5). As I wrote here, that is an issue already:

In Campbell’s case, there may be something sensible to be said about the big gap between the three-year and six-month penalties. Parliament is saying that one offence is a lot less culpable than the other. Whilst debatable, in cases such as this that have more to do with the animal’s smarts or good luck, that is the current law.

The SPCA says both maxima should be increased. For wilful ill treatment, at least, I’m not sure the maximum penalty is the problem ...

To preserve any sensible sort of relativity - which to be fair, on the evidence of the statute book, doesn't seem to have featured large in the political mind in the past - that is another one that will need to increase. In the worst class of case of ill treatment, the animal escapes permanent maiming or death (which is what elevates ill treatment to "wilful") purely by good luck, nothing to do with the offender's culpability.

It is a knee jerk reaction to a popular headline and in my opinion an example of how the media can unfairly influence policy.

I think it is interesting to see how this has happened on both sides of the animal vs people divide. On the one hand, a few recent cases of extreme cruelty have driven the demand for tougher sentences. On the other, a few cases of dog attacks have driven a range of other fairly silly policy responses (microchipping, anyone?) Perhaps (as you allude to) there is something primal/atavistic about our relationship with "pets" that makes them inherently valuable news fodder, hence easy targets for campaigns.

Out of interest I wonder how many times prison sentences are actually handed down for animal cruelty?

For what it is worth, the numbers John Key quoted is 3% of the 1% of cases of serious cruelty that are prosecuted result in prison sentences (i.e. 0.03% of cases of serious cruelty result in someone going to jail). Note that even if raising the tariff to 5 years increased the imprisonment rate by a factor of 5, we're still talking about 0.15% of cases resulting in imprisonment. Is that enough for deterrent effect?

Claire,

Hadn't realised that section 195 already was in line for change - thanks. But I wonder where the government will put a 5 year penalty in relation to the proposed new offences against the person provisions recommended by the Law Commission? For "Causing injury with intent to injure", perhaps?

Completely agree with your post. Simon Powers' reference to the connection between animal cruelty and violence towards people as a justification for increased sentences is irrational. If cruelty towards animals increased the risk that a person would also be violent against people, the ( very dubious) argument would I guess be that a harsh penalty for the precursor crime ( violence towards animals) might prevent future cruelty and violence towards people. But the relationship is not causal as far as I can see. They are both symptoms of a lack of a empathy. ( I too am fully against cruelty to animals but also against unecessarily extending the length of prison sentences)

However, they have overlooked another relativity issue: the large discrepancy between the penalties for "ordinary" ill treatment (6 months) and "wilful" ill treatment (currently 3 years, to be increased to 5)

The major problem I have with the discrepancy is that there is no intermediate offence between strict liability ill-treatment, and wilful ill-treatment (which only applies if the animal dies or is permanently maimed). What's missing is a wilful ill-treatment offence where that wilful ill-treatment doesn't result in the death or permanent disfigurement of the animal.

As for proportionality, there is a distinction to be drawn between the proportionality of maximum sentences and the proportionality of actual sentences. Murder is obviously a worse crime than manslaughter, but both carry life sentences. The difference is that the actual sentences differ markedly - murder almost always life, with a substantial non-parole period, and manslaughter occasionally as low as community service.

I'm quite happy with the idea the at the highest level of animal cruelty someone might face five years. I also think it is proportional. Though both offences are characterised as cruelty, what each is punishing is very different.

We should consider what we're comparing here - the type of cruelty which inflicted upon an animal would result in a term near 5 years is the level of cruelty which, when inflicted on a human, would earn a life sentence (and quite possibly soon, one without the possibility of parole).

Cruel indifference to children carries a five-year term. Cruel indifference to animals carries a six-month term. Torture of animals resulting in their gruesome deaths carries a three-year term (to increase to five years). Torture of children resulting in their gruesome deaths carries a life sentence.

An offence characterised as cruelty is the most serious offence that can be laid in relation to animal welfare. Proportionality is maintained because cruel offending against children (and other humans) can be charged as a much more serious offence (wounding, manslaughter, murder, etc.).

It's also interesting that because the dogs in the shooting up north weren't owned by the guy who shot them, a charge of intentional damage could potentially be laid - with a 7-year maximum. Is that proportional?

Great post Andrew! I've been feeling quite uncomfortable about this too.

And, of course, if the real problem is that the internal tariff is set too low, with an appropriate range of possible penalties, might the (now abolished) Sentencing Council that would have provided Parliament some say in the tariffs also have addressed the perceived problem?

Oh great - now we've got all the blogosphere's legal pedants involved!

The underlying problem does seem to be that MPs (reflecting public opinion) think judges haven't made sufficient use of the imprisonment tariff in past cases of cruelty. So the hiking to 5 years is meant to be a message that "we REALLY want to see people in jail for doing this!" But I wonder if it is necessary to accomplish that end ... judges read the papers, and have pre-teen kids (OK - grandkids) who chew off their ears on this topic as Justin Maloney mentions above in respect of politicians. So we see in the two "kitten cases" that helped spark the recent demand for change that one offender got 2 years 4 months, while in the second (yet to be sentenced) case the judge indicated that jail time was a real possibility.

As for the Sentencing Council ... maybe. I don't know enough about it. Can I suggest a Laws179.co.nz post on it, or (even better) a Your Punt post here?

"Disestablished" is not right, either, I'm afraid. The Act was, and is, in force, as Graeme says; however the Council itself was never established, and as the quote suggests, it is publicly stated government policy not to do so.

As for Andrew's post, it's interesting the link from human-to-human violence leading to human-to-animal violence, rather than the other way round, which I think is widely assumed. But given how punitive we are towards victims of violence who go onto commit violence, I doubt many will be very concerned because animal abusers were once victims themselves.

As for the wider question of animal cruelty, I've thought how I square off the inconsistency you wrestle with and it seems to me that the ends justify the means. If the cruelty is maximised for its own sake and the end goal is a perverse pleasure, then society cannot sanction it. If it is minimised and done for the health and survival of humanity, personally, I think that's different, and reflects a different state of mind.

At least, as a meat eater, I've chosen to live with it (even allowing for the arguments re not killing my own food, being able to get sufficient protein etc from plants and so on).